Preview
[Exempt From Filing Fee
Government Code § 6103]
1 ANDREW W. SCHWARTZ (State Bar No. 87699)
SARAH H. SIGMAN (State Bar No. 260924)
2 BENJAMIN GONZALEZ (State Bar No. 325853)
SHUTE, MIHALY & WEINBERGER LLP
3 396 Hayes Street
San Francisco, California 94102
4 Telephone: (415) 552-7272
Facsimile: (415) 552-5816
5 schwartz@smwlaw.com
sigman@smwlaw.com
6 bgonzalez@smwlaw.com
7 Attorneys for Plaintiff
CITY OF HALF MOON BAY
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO, NORTHERN BRANCH
11 CITY OF HALF MOON BAY, Case No. 21-CIV-01560
12 Plaintiff, CITY OF HALF MOON BAY’S REPLY IN
SUPPORT OF MOTION TO QUASH
13 v. SUBPOENA, AND FOR SANCTIONS
14 THOMAS J. GEARING; DANIEL K. Code Civ. Proc. § 1987.1
GEARING; DOES 1 through 50,
15 inclusive; and all persons unknown APNs: 056-096-240, 056-096-480, 056-127-030,
claiming an interest in the property, 056-127-040, 056-128-090, and 056-125-210
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Defendants. Assigned for All Purposes to:
17 Hon. Danny Y. Chou, Dept. 22
THOMAS J. GEARING and DANIEL
18 K. GEARING, Date: July 28, 2022
Time: 2:00 p.m.
19 Cross-Complainants,
Action Filed: March 23, 2021
20 v. Trial Date: None set
21 CITY OF HALF MOON BAY, and Filed Concurrently with Reply Declaration of B.
ROES 1 through 100, inclusive, Gonzalez
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Cross-Defendant.
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City’s Reply ISO Motion to Quash Subpoena and for Sanctions
Case No. 21-CIV-01560
1 TABLE OF CONTENTS
Page
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3 INTRODUCTION .......................................................................................................................... 4
4 ARGUMENT.................................................................................................................................. 5
5 I. To promote fairness, California law requires that the exchange of expert
appraisal data be mutual and simultaneous. ............................................................. 5
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II. Quashing the subpoena will not unfairly prejudice Defendants or cause an
7 injustice because it is irrelevant to their federal claims. .......................................... 6
8 III. The City’s sharing of the summary basis of appraisal and initial valuation is
statutorily mandated and does not waive the attorney work-product and
9 attorney client privilege as to the remainder of the files. ......................................... 7
10 IV. The City timely and properly filed this Motion and was not required to wait
indefinitely for the Defendants’ to respond to the meet and confer email. .............. 8
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V. Personal service is required for subpoena of a third party; Defendants’
12 failure to do so justifies quashing the subpoena....................................................... 9
13 VI. The Court should award sanctions for Defendants’ unjustified subpoena. .............. 9
14 CONCLUSION ............................................................................................................................ 10
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City’s Reply ISO Motion to Quash Subpoena and for Sanctions
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1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 City of Santa Clarita v. NTS Technical Systems (2006)
5 137 Cal.App.4th 264 ............................................................................................................. 5, 6
6 County of Los Angeles v. Kling (1972)
22 Cal.App.3d 916 .................................................................................................................... 5
7 In re R.R. (2010)
8 187 Cal.App.4th 1264 ............................................................................................................... 8
9 Swartzman v. Superior Court (1964)
231 Cal.App.2d 195 .............................................................................................................. 5, 6
10 Statutes
11 Code of Civil Procedure
12 § 1255.060 ................................................................................................................................. 8
§ 1258.210 ......................................................................................................................... 5, 6, 9
13 § 1258.220 ................................................................................................................................. 5
§ 1258.230 ................................................................................................................................. 5
14 § 1260.040 ................................................................................................................................. 7
§ 1263.110 ................................................................................................................................. 7
15 § 1987.1 ................................................................................................................................. 1, 9
§ 1987.2 ..................................................................................................................................... 9
16 § 2018.030 ................................................................................................................................. 6
§ 2020.220 ................................................................................................................................. 9
17 § 2034.210 ................................................................................................................................. 7
18 Government Code
§ 7267.2 ..................................................................................................................................... 7
19 Other Authorities
20 California Rules of Court, Rule 3.1345 .......................................................................................... 9
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City’s Reply ISO Motion to Quash Subpoena and for Sanctions
Case No. 21-CIV-01560
1 INTRODUCTION
2 Defendants’ request for Mr. Carneghi’s appraisal and related documents is premature.
3 Defendants subpoenaed Mr. Carneghi’s files in a cynical attempt to gain access to the City’s
4 appraisal data without disclosing their own appraisal data. The subpoena directly contravenes
5 established eminent domain law requiring a mutual, simultaneous exchange of valuation data so
6 that neither party can gain an advantage by securing the oppositions’ appraisal before disclosing
7 their own appraisal. This rule applies with full force to Defendants’ Klopping claim for
8 precondemnation damages.
9 The City previously offered to engage in a mutual, simultaneous exchange of lists of
10 experts and valuation data prior to the statutory deadline for the exchange. Defendants, however,
11 rejected that request. Because the parties have not exchanged lists of experts and valuation data,
12 and Mr. Carneghi has not been disclosed as the City’s expert, Mr. Carneghi’s files are absolutely
13 protected from discovery under the attorney work-product privilege.
14 Defendants ignore this straightforward law and instead argue that the City’s appraisal
15 data is allegedly necessary to prosecute Defendants’ federal claims. This argument is without
16 merit. Defendants have reserved their federal claims for their federal court action and have
17 conceded that they are not litigating their federal claims in state court. Even if Defendants have
18 reversed position and choose to litigate their federal claims in state court, Defendants have failed
19 to explain how Mr. Carneghi’s valuation evidence is relevant to their federal claims. Mr.
20 Carneghi’s real estate valuation evidence, if the City chooses to disclose him as an expert, would
21 be relevant only to the one remaining issue in this eminent domain case; namely, the fair market
22 value of the property (“Property”).
23 Defendants further contend that some of Mr. Carneghi’s files are already in the public
24 domain, without identifying those documents or offering them to the Court as evidence. If
25 certain of Mr. Carneghi’s files are in the public domain, Defendants can obtain those documents
26 from the City or the persons who have custody of them. Because Defendants failed to identify
27 the documents, however, Mr. Carneghi cannot be required to speculate as to which of his files
28 are in the public domain. The law is also clear that the City’s prior disclosure of the summary of
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City’s Reply ISO Motion to Quash Subpoena and for Sanctions
Case No. 21-CIV-01560
1 the basis of Mr. Carneghi’s pre-litigation appraisal, on which the City based its mandatory pre-
2 eminent domain offer to Defendants, does not waive the attorney work-product privilege
3 covering the remainder of Mr. Carneghi’s files.
4 Defendants’ contentions that the timing and format of the City’s Motion were improper
5 are frivolous. No separate statement is required for a non-party subpoena for records,
6 particularly where the subpoenaed party never filed a written response to the subpoena and the
7 City has moved to quash the entire subpoena. Similarly, Defendants’ attorney failed to respond
8 to the City’s request to withdraw the subpoena within a reasonable time. With the date for Mr.
9 Carneghi’s response to the subpoena approaching, the City had no choice but to file this motion.
10 ARGUMENT
11 I. To promote fairness, California law requires that the exchange of expert appraisal
data be mutual and simultaneous.
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The California Eminent Domain Law requires a mutual, simultaneous exchange of lists
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of expert witnesses and statements of valuation data. Code Civ. Proc. § 1258.210 (parties may
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demand exchange of expert witness lists and valuation data); § 1258.220 (date of exchange is
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either by agreement or 90 days before trial); § 1258.230 (on date of exchange, each party shall
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deposit list of expert witnesses and statements of valuation data with the court and serve the list
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and data on each other party). 1
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“The purpose of exchanging statements of valuation data in advance of trial is to foster
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fairness and judicial economy. ‘In condemnation proceedings this has taken the form of an
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exchange of reports of experts during the final pretrial proceedings immediately in advance of
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trial. The key element is mutuality.’” City of Santa Clarita v. NTS Technical Systems (2006) 137
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Cal.App.4th 264, 276-77 (quoting Swartzman v. Superior Court (1964) 231 Cal.App.2d 195,
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203-04); see also County of Los Angeles v. Kling (1972) 22 Cal.App.3d 916, 922 (approving
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“compulsory mutual exchange of appraisal data in eminent domain cases”).
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The rules of discovery contemplate two-way disclosure and do not
26 envision that one party may sit back in idleness and savor the fruits
which his adversary has cultivated and harvested in diligence and
27 industry. Mutual exchange of data provides some protection against
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All further statutory references are to the Code of Civil Procedure unless stated otherwise.
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City’s Reply ISO Motion to Quash Subpoena and for Sanctions
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1 attempted one-way disclosure; the party seeking discovery must be
ready and willing to make an equitable exchange. [Citations.]
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3 Swartzman, 231 Cal.App.2d 195, 204; see also Law Revision Commission Comments to §
4 1258.210 (“Where a party makes a demand to exchange data, that party must himself provide
5 his own data to the party on whom the demand was served.”).
6 Defendants’ one-way request for disclosure of expert appraisal data violates this well-
7 established principle of mutuality in an effort to gain an unfair advantage over the City. The City
8 sought to set a date for mutual exchange, but Defendants’ refused the offer and then unilaterally
9 requested discovery of the City’s expert data. See City’s Notice and Motion to Quash Subpoena
10 (“Motion”) at 3 (filed May 11, 2022). Defendants’ subpoena has also forced the City and the
11 Court to expend additional resources to resolve this discovery dispute. If Defendants had
12 followed the rule requiring a mutual exchange of expert data, this expenditure of judicial
13 resources could have been avoided. See City of Santa Clarita, 137 Cal.App.4th at 276-77. The
14 subpoena violates this very clear law and is improper.
15 II. Quashing the subpoena will not unfairly prejudice Defendants or cause an injustice
because it is irrelevant to their federal claims.
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Defendants argue that the Court should disregard the law requiring mutual exchange of
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expert information because they denial of Mr. Carneghi’s files at this juncture will unfairly
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prejudice them or result in an injustice. § 2018.030(b). Defendants’ allege that the “primary
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purpose” of the subpoena is not to discover evidence relevant to the fair market value of the
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property, but rather to “prove [] a taking under Lucas or Penn Central [Defendants’ federal
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claims], and to develop evidence that Klopping damages have been sustained.” Opposition to
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Motion to Quash Subpoena (“Opp.”) at 9 (filed July 15, 2022). This argument, however, does
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not justify skirting the statutory mutual exchange of expert data, for three reasons.
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First, Defendants represented that they “do not intend to . . . submi[t]” their federal
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claims to this Court. Defendants’ Opposition to City’s Motion to Strike, or to Demur at 9 (filed
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Feb. 3, 2022). Defendants’ have reserved their federal claims for adjudication in federal court
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1 under England. Id. They cannot seek discovery to support claims that are not at issue in this
2 case. 2
3 Second, even assuming that Defendants intend to litigate their federal claims in this
4 eminent domain action, Defendants’ assertion that the rules for exchange of expert information
5 in eminent domain actions do not apply to their federal claims is incorrect. Exchange of expert
6 information in non-eminent domain actions must also be mutual and simultaneous. § 2034.210
7 (“any party may obtain discovery by demanding that all parties simultaneously exchange
8 information concerning each other's expert trial witnesses”).
9 Third, Defendants’ federal and Klopping claims are based on the allegation that
10 application of the City’s land use regulations to the Property prevented its development.
11 Whether the City’s regulation had this effect on the Property, or is valid, are legal issues and
12 have nothing to do with the opinion of value of the City’s appraiser. As Defendants’ know from
13 the City’s motion under Code of Civil Procedure section 1260.040, the City intends to instruct
14 its appraiser, whether Mr. Carneghi or another appraiser, to assume that all government
15 regulations applicable to the Property are valid. The opinion of value of the City’s appraiser,
16 therefore, will have no relevance to the validity of that regulation. Moreover, the parties’
17 appraisers will be required to value the Property on the statutory date of value, which is the date
18 the City deposited the probable compensation with the State Treasurer. § 1263.110. Whether the
19 City engaged in precondemnation conduct that would give rise to Klopping damages has nothing
20 to do with the City’s appraisal. Defendants have thus failed to show a compelling need for early
21 access to Mr. Carneghi’s files, other than to gain an unfair advantage against the City.
22 III. The City’s sharing of the summary basis of appraisal and initial valuation is
statutorily mandated and does not waive the attorney work-product and attorney
23 client privilege as to the remainder of the files.
24 Government Code section 7267.2(b) requires that before filing an eminent domain action,
25 the City provide the owner of the property a summary of the basis of the City’s appraisal. The
26 Eminent Domain Law expressly excludes this precondemnation appraisal from evidence and
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This issue is more fully addressed in the City’s Opposition to Defendant’s Motion for Limited
Stay (filed July 15, 2022), which is set to be heard at the same time as this Motion.
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City’s Reply ISO Motion to Quash Subpoena and for Sanctions
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1 prohibits the property owner from calling that appraiser as a witness. § 1255.060. Accordingly,
2 Defendants may not discover Mr. Carenghi’s files regarding the precondemnation appraisal
3 unless and until the City discloses Mr. Carneghi as an expert in a mutual exchange.
4 IV. The City timely and properly filed this Motion and was not required to wait
indefinitely for the Defendants’ to respond to the meet and confer email.
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The subpoena that Defendants’ left at Mr. Carneghi’s office on May 9, 2022 purported to
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require Mr. Carneghi to produce his files on May 20, 2022. The City’s attorney contacted
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counsel for Defendants the next day, May 10, 2022, at 8:09 a.m., to meet and confer, asking
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Defendants to withdraw the subpoena. Declaration of Sarah H. Sigman in support of City’s
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Motion to Quash Subpoena, and for Sanctions, Ex. C. Defendants failed to respond to the meet
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and confer email. Id., ¶ 4. The City waited until after the end of business hours on May 11, 2022
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to file this Motion, allowing two full business days for Defendants’ counsel to respond.
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Declaration of Kristen Renfro in Support of Gearing Opposition to City’s Motion to Quash
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Subpoena and for Sanctions, ¶ 9 (“Renfro Decl.”). Confronted with Defendants’ extended
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silence, the obvious fact that Defendants did not intend to respond to the City’s email because a
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response would have required no more than a few minutes, and the impending date for
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production of privileged files demanded in the subpoena, the City was reasonable in filing the
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Motion to Quash after waiting two full days without the courtesy of a response. 3
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Compounding Defendants’ lack of good faith, Defendants’ counsel waited a full week,
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until May 18, 2022, to respond to the City’s meet and confer email. Id., ¶ 10. Where Defendants
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ultimately rejected the City’s request to withdraw the subpoena, it is the height of gall for
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Defendants to claim prejudice that the City did not give them more than two days to reject the
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City’s request. Defendants would be required to respond to the City’s motion regardless of the
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timing of the filing of the motion. See In re R.R. (2010) 187 Cal.App.4th 1264, 1278 (motion to
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Defendants’ assert that on May 11, 2022 they “made clear . . . [that] Carneghi was excused
from complying with the business records request any earlier than 15 days from the date of
27 service.” Defendants, however, fail to provide any support for this statement. See Opp. at 6.
Defendants did not alert the City to the extension until May 18, 2022 when Ms. Renfro finally
28 responded to the City’s meet and confer email, seven days after the City filed its motion. See
Renfro Decl., Ex. E.
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1 quash typically filed before the time for production, although the court may consider such
2 motion after the date of production).
3 Defendants contention that the City must submit a separate statement with this Motion is
4 also frivolous. Defendants cite no authority that a separate statement is required for a third-party
5 subpoena. Moreover, no separate statement is required for a motion to quash an entire subpoena
6 as improperly served and untimely because “no response has been provided to the request for
7 discovery.” California Rules of Court, rule 3.1345 (b). The City attached a copy of the subpoena
8 to Mr. Carneghi’s declaration supporting this Motion. No purpose would be served by providing
9 a separate statement reproducing each request for documents in the subpoena. The City objects
10 to the subpoena as a whole as in violation of Code of Civil Procedure sections 1258.210 et seq.
11 and the attorney work-product privilege, rather than any specific request for documents. See
12 Motion at 4-7. Accordingly, this motion to quash was reasonably, timely, and properly filed.
13 V. Personal service is required for subpoena of a third party; Defendants’ failure to do
so justifies quashing the subpoena.
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Parties must serve subpoenas personally, including those for business records. §
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2020.220. Section 415.20 authorizes substitute service of the “summons and complaint” in lieu
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of personal delivery, specifying that “[s]ervice of a summons in this manner is deemed complete
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on the 10th day after mailing.” Nothing in the Code of Civil Procedure authorizes substitute
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service of a subpoena. Accordingly, Mr. Carneghi cannot consent to substitute service where
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such service is not allowed. As such, the subpoena was never properly served on Mr. Carneghi
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and may be quashed on this ground alone.
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VI. The Court should award sanctions for Defendants’ unjustified subpoena.
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The City requests that the Court award the amount of the reasonable expenses incurred in
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making this motion to quash pursuant to Code of Civil Procedure section 1987.1, including a
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total of $9,501.60 in reasonable attorneys’ fees for time and expenses incurred on the City’s
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efforts to cause Defendants to withdraw the subpoena and prepare the Opening and Reply briefs
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and supporting documents. §§ 1987.2; 2023.010(a)-(c), 2023.030(a). The City has incurred 19.7
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hours of associate time on this Reply brief billed at a rate of $249 per hour and 4.3 hours of
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1 partner time billed at a rate of $288 per hour, for attorneys’ fees of $6,143.70. Declaration of B.
2 Gonzalez in Support of Reply on City’s Motion to Quash and for Sanctions, ¶ 2. This total does
3 not include the cost of counsel’s time to prepare for and attend a hearing on the Motion.
4 CONCLUSION
5 The Court should grant the City’s Motion to Quash Subpoena and award sanctions to the
6 City.
7 DATED: July 21, 2022 SHUTE, MIHALY & WEINBERGER LLP
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By:
10 BENJAMIN GONZALEZ
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Attorneys for Plaintiff
12 CITY OF HALF MOON BAY
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Preview
[Exempt From Filing Fee Government Code § 6103] 1 ANDREW W. SCHWARTZ (State Bar No. 87699) SARAH H. SIGMAN (State Bar No. 260924) 2 BENJAMIN GONZALEZ (State Bar No. 325853) SHUTE, MIHALY & WEINBERGER LLP 3 396 Hayes Street San Francisco, California 94102 4 Telephone: (415) 552-7272 Facsimile: (415) 552-5816 5 schwartz@smwlaw.com sigman@smwlaw.com 6 bgonzalez@smwlaw.com 7 Attorneys for Plaintiff CITY OF HALF MOON BAY 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO, NORTHERN BRANCH 11 CITY OF HALF MOON BAY, Case No. 21-CIV-01560 12 Plaintiff, CITY OF HALF MOON BAY’S REPLY IN SUPPORT OF MOTION TO QUASH 13 v. SUBPOENA, AND FOR SANCTIONS 14 THOMAS J. GEARING; DANIEL K. Code Civ. Proc. § 1987.1 GEARING; DOES 1 through 50, 15 inclusive; and all persons unknown APNs: 056-096-240, 056-096-480, 056-127-030, claiming an interest in the property, 056-127-040, 056-128-090, and 056-125-210 16 Defendants. Assigned for All Purposes to: 17 Hon. Danny Y. Chou, Dept. 22 THOMAS J. GEARING and DANIEL 18 K. GEARING, Date: July 28, 2022 Time: 2:00 p.m. 19 Cross-Complainants, Action Filed: March 23, 2021 20 v. Trial Date: None set 21 CITY OF HALF MOON BAY, and Filed Concurrently with Reply Declaration of B. ROES 1 through 100, inclusive, Gonzalez 22 Cross-Defendant. 23 24 25 26 27 28 City’s Reply ISO Motion to Quash Subpoena and for Sanctions Case No. 21-CIV-01560 1 TABLE OF CONTENTS Page 2 3 INTRODUCTION .......................................................................................................................... 4 4 ARGUMENT.................................................................................................................................. 5 5 I. To promote fairness, California law requires that the exchange of expert appraisal data be mutual and simultaneous. ............................................................. 5 6 II. Quashing the subpoena will not unfairly prejudice Defendants or cause an 7 injustice because it is irrelevant to their federal claims. .......................................... 6 8 III. The City’s sharing of the summary basis of appraisal and initial valuation is statutorily mandated and does not waive the attorney work-product and 9 attorney client privilege as to the remainder of the files. ......................................... 7 10 IV. The City timely and properly filed this Motion and was not required to wait indefinitely for the Defendants’ to respond to the meet and confer email. .............. 8 11 V. Personal service is required for subpoena of a third party; Defendants’ 12 failure to do so justifies quashing the subpoena....................................................... 9 13 VI. The Court should award sanctions for Defendants’ unjustified subpoena. .............. 9 14 CONCLUSION ............................................................................................................................ 10 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 City’s Reply ISO Motion to Quash Subpoena and for Sanctions Case No. 21-CIV-01560 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 City of Santa Clarita v. NTS Technical Systems (2006) 5 137 Cal.App.4th 264 ............................................................................................................. 5, 6 6 County of Los Angeles v. Kling (1972) 22 Cal.App.3d 916 .................................................................................................................... 5 7 In re R.R. (2010) 8 187 Cal.App.4th 1264 ............................................................................................................... 8 9 Swartzman v. Superior Court (1964) 231 Cal.App.2d 195 .............................................................................................................. 5, 6 10 Statutes 11 Code of Civil Procedure 12 § 1255.060 ................................................................................................................................. 8 § 1258.210 ......................................................................................................................... 5, 6, 9 13 § 1258.220 ................................................................................................................................. 5 § 1258.230 ................................................................................................................................. 5 14 § 1260.040 ................................................................................................................................. 7 § 1263.110 ................................................................................................................................. 7 15 § 1987.1 ................................................................................................................................. 1, 9 § 1987.2 ..................................................................................................................................... 9 16 § 2018.030 ................................................................................................................................. 6 § 2020.220 ................................................................................................................................. 9 17 § 2034.210 ................................................................................................................................. 7 18 Government Code § 7267.2 ..................................................................................................................................... 7 19 Other Authorities 20 California Rules of Court, Rule 3.1345 .......................................................................................... 9 21 22 23 24 25 26 27 28 3 City’s Reply ISO Motion to Quash Subpoena and for Sanctions Case No. 21-CIV-01560 1 INTRODUCTION 2 Defendants’ request for Mr. Carneghi’s appraisal and related documents is premature. 3 Defendants subpoenaed Mr. Carneghi’s files in a cynical attempt to gain access to the City’s 4 appraisal data without disclosing their own appraisal data. The subpoena directly contravenes 5 established eminent domain law requiring a mutual, simultaneous exchange of valuation data so 6 that neither party can gain an advantage by securing the oppositions’ appraisal before disclosing 7 their own appraisal. This rule applies with full force to Defendants’ Klopping claim for 8 precondemnation damages. 9 The City previously offered to engage in a mutual, simultaneous exchange of lists of 10 experts and valuation data prior to the statutory deadline for the exchange. Defendants, however, 11 rejected that request. Because the parties have not exchanged lists of experts and valuation data, 12 and Mr. Carneghi has not been disclosed as the City’s expert, Mr. Carneghi’s files are absolutely 13 protected from discovery under the attorney work-product privilege. 14 Defendants ignore this straightforward law and instead argue that the City’s appraisal 15 data is allegedly necessary to prosecute Defendants’ federal claims. This argument is without 16 merit. Defendants have reserved their federal claims for their federal court action and have 17 conceded that they are not litigating their federal claims in state court. Even if Defendants have 18 reversed position and choose to litigate their federal claims in state court, Defendants have failed 19 to explain how Mr. Carneghi’s valuation evidence is relevant to their federal claims. Mr. 20 Carneghi’s real estate valuation evidence, if the City chooses to disclose him as an expert, would 21 be relevant only to the one remaining issue in this eminent domain case; namely, the fair market 22 value of the property (“Property”). 23 Defendants further contend that some of Mr. Carneghi’s files are already in the public 24 domain, without identifying those documents or offering them to the Court as evidence. If 25 certain of Mr. Carneghi’s files are in the public domain, Defendants can obtain those documents 26 from the City or the persons who have custody of them. Because Defendants failed to identify 27 the documents, however, Mr. Carneghi cannot be required to speculate as to which of his files 28 are in the public domain. The law is also clear that the City’s prior disclosure of the summary of 4 City’s Reply ISO Motion to Quash Subpoena and for Sanctions Case No. 21-CIV-01560 1 the basis of Mr. Carneghi’s pre-litigation appraisal, on which the City based its mandatory pre- 2 eminent domain offer to Defendants, does not waive the attorney work-product privilege 3 covering the remainder of Mr. Carneghi’s files. 4 Defendants’ contentions that the timing and format of the City’s Motion were improper 5 are frivolous. No separate statement is required for a non-party subpoena for records, 6 particularly where the subpoenaed party never filed a written response to the subpoena and the 7 City has moved to quash the entire subpoena. Similarly, Defendants’ attorney failed to respond 8 to the City’s request to withdraw the subpoena within a reasonable time. With the date for Mr. 9 Carneghi’s response to the subpoena approaching, the City had no choice but to file this motion. 10 ARGUMENT 11 I. To promote fairness, California law requires that the exchange of expert appraisal data be mutual and simultaneous. 12 The California Eminent Domain Law requires a mutual, simultaneous exchange of lists 13 of expert witnesses and statements of valuation data. Code Civ. Proc. § 1258.210 (parties may 14 demand exchange of expert witness lists and valuation data); § 1258.220 (date of exchange is 15 either by agreement or 90 days before trial); § 1258.230 (on date of exchange, each party shall 16 deposit list of expert witnesses and statements of valuation data with the court and serve the list 17 and data on each other party). 1 18 “The purpose of exchanging statements of valuation data in advance of trial is to foster 19 fairness and judicial economy. ‘In condemnation proceedings this has taken the form of an 20 exchange of reports of experts during the final pretrial proceedings immediately in advance of 21 trial. The key element is mutuality.’” City of Santa Clarita v. NTS Technical Systems (2006) 137 22 Cal.App.4th 264, 276-77 (quoting Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 23 203-04); see also County of Los Angeles v. Kling (1972) 22 Cal.App.3d 916, 922 (approving 24 “compulsory mutual exchange of appraisal data in eminent domain cases”). 25 The rules of discovery contemplate two-way disclosure and do not 26 envision that one party may sit back in idleness and savor the fruits which his adversary has cultivated and harvested in diligence and 27 industry. Mutual exchange of data provides some protection against 28 1 All further statutory references are to the Code of Civil Procedure unless stated otherwise. 5 City’s Reply ISO Motion to Quash Subpoena and for Sanctions Case No. 21-CIV-01560 1 attempted one-way disclosure; the party seeking discovery must be ready and willing to make an equitable exchange. [Citations.] 2 3 Swartzman, 231 Cal.App.2d 195, 204; see also Law Revision Commission Comments to § 4 1258.210 (“Where a party makes a demand to exchange data, that party must himself provide 5 his own data to the party on whom the demand was served.”). 6 Defendants’ one-way request for disclosure of expert appraisal data violates this well- 7 established principle of mutuality in an effort to gain an unfair advantage over the City. The City 8 sought to set a date for mutual exchange, but Defendants’ refused the offer and then unilaterally 9 requested discovery of the City’s expert data. See City’s Notice and Motion to Quash Subpoena 10 (“Motion”) at 3 (filed May 11, 2022). Defendants’ subpoena has also forced the City and the 11 Court to expend additional resources to resolve this discovery dispute. If Defendants had 12 followed the rule requiring a mutual exchange of expert data, this expenditure of judicial 13 resources could have been avoided. See City of Santa Clarita, 137 Cal.App.4th at 276-77. The 14 subpoena violates this very clear law and is improper. 15 II. Quashing the subpoena will not unfairly prejudice Defendants or cause an injustice because it is irrelevant to their federal claims. 16 Defendants argue that the Court should disregard the law requiring mutual exchange of 17 expert information because they denial of Mr. Carneghi’s files at this juncture will unfairly 18 prejudice them or result in an injustice. § 2018.030(b). Defendants’ allege that the “primary 19 purpose” of the subpoena is not to discover evidence relevant to the fair market value of the 20 property, but rather to “prove [] a taking under Lucas or Penn Central [Defendants’ federal 21 claims], and to develop evidence that Klopping damages have been sustained.” Opposition to 22 Motion to Quash Subpoena (“Opp.”) at 9 (filed July 15, 2022). This argument, however, does 23 not justify skirting the statutory mutual exchange of expert data, for three reasons. 24 First, Defendants represented that they “do not intend to . . . submi[t]” their federal 25 claims to this Court. Defendants’ Opposition to City’s Motion to Strike, or to Demur at 9 (filed 26 Feb. 3, 2022). Defendants’ have reserved their federal claims for adjudication in federal court 27 28 6 City’s Reply ISO Motion to Quash Subpoena and for Sanctions Case No. 21-CIV-01560 1 under England. Id. They cannot seek discovery to support claims that are not at issue in this 2 case. 2 3 Second, even assuming that Defendants intend to litigate their federal claims in this 4 eminent domain action, Defendants’ assertion that the rules for exchange of expert information 5 in eminent domain actions do not apply to their federal claims is incorrect. Exchange of expert 6 information in non-eminent domain actions must also be mutual and simultaneous. § 2034.210 7 (“any party may obtain discovery by demanding that all parties simultaneously exchange 8 information concerning each other's expert trial witnesses”). 9 Third, Defendants’ federal and Klopping claims are based on the allegation that 10 application of the City’s land use regulations to the Property prevented its development. 11 Whether the City’s regulation had this effect on the Property, or is valid, are legal issues and 12 have nothing to do with the opinion of value of the City’s appraiser. As Defendants’ know from 13 the City’s motion under Code of Civil Procedure section 1260.040, the City intends to instruct 14 its appraiser, whether Mr. Carneghi or another appraiser, to assume that all government 15 regulations applicable to the Property are valid. The opinion of value of the City’s appraiser, 16 therefore, will have no relevance to the validity of that regulation. Moreover, the parties’ 17 appraisers will be required to value the Property on the statutory date of value, which is the date 18 the City deposited the probable compensation with the State Treasurer. § 1263.110. Whether the 19 City engaged in precondemnation conduct that would give rise to Klopping damages has nothing 20 to do with the City’s appraisal. Defendants have thus failed to show a compelling need for early 21 access to Mr. Carneghi’s files, other than to gain an unfair advantage against the City. 22 III. The City’s sharing of the summary basis of appraisal and initial valuation is statutorily mandated and does not waive the attorney work-product and attorney 23 client privilege as to the remainder of the files. 24 Government Code section 7267.2(b) requires that before filing an eminent domain action, 25 the City provide the owner of the property a summary of the basis of the City’s appraisal. The 26 Eminent Domain Law expressly excludes this precondemnation appraisal from evidence and 27 28 2 This issue is more fully addressed in the City’s Opposition to Defendant’s Motion for Limited Stay (filed July 15, 2022), which is set to be heard at the same time as this Motion. 7 City’s Reply ISO Motion to Quash Subpoena and for Sanctions Case No. 21-CIV-01560 1 prohibits the property owner from calling that appraiser as a witness. § 1255.060. Accordingly, 2 Defendants may not discover Mr. Carenghi’s files regarding the precondemnation appraisal 3 unless and until the City discloses Mr. Carneghi as an expert in a mutual exchange. 4 IV. The City timely and properly filed this Motion and was not required to wait indefinitely for the Defendants’ to respond to the meet and confer email. 5 The subpoena that Defendants’ left at Mr. Carneghi’s office on May 9, 2022 purported to 6 require Mr. Carneghi to produce his files on May 20, 2022. The City’s attorney contacted 7 counsel for Defendants the next day, May 10, 2022, at 8:09 a.m., to meet and confer, asking 8 Defendants to withdraw the subpoena. Declaration of Sarah H. Sigman in support of City’s 9 Motion to Quash Subpoena, and for Sanctions, Ex. C. Defendants failed to respond to the meet 10 and confer email. Id., ¶ 4. The City waited until after the end of business hours on May 11, 2022 11 to file this Motion, allowing two full business days for Defendants’ counsel to respond. 12 Declaration of Kristen Renfro in Support of Gearing Opposition to City’s Motion to Quash 13 Subpoena and for Sanctions, ¶ 9 (“Renfro Decl.”). Confronted with Defendants’ extended 14 silence, the obvious fact that Defendants did not intend to respond to the City’s email because a 15 response would have required no more than a few minutes, and the impending date for 16 production of privileged files demanded in the subpoena, the City was reasonable in filing the 17 Motion to Quash after waiting two full days without the courtesy of a response. 3 18 Compounding Defendants’ lack of good faith, Defendants’ counsel waited a full week, 19 until May 18, 2022, to respond to the City’s meet and confer email. Id., ¶ 10. Where Defendants 20 ultimately rejected the City’s request to withdraw the subpoena, it is the height of gall for 21 Defendants to claim prejudice that the City did not give them more than two days to reject the 22 City’s request. Defendants would be required to respond to the City’s motion regardless of the 23 timing of the filing of the motion. See In re R.R. (2010) 187 Cal.App.4th 1264, 1278 (motion to 24 25 26 3 Defendants’ assert that on May 11, 2022 they “made clear . . . [that] Carneghi was excused from complying with the business records request any earlier than 15 days from the date of 27 service.” Defendants, however, fail to provide any support for this statement. See Opp. at 6. Defendants did not alert the City to the extension until May 18, 2022 when Ms. Renfro finally 28 responded to the City’s meet and confer email, seven days after the City filed its motion. See Renfro Decl., Ex. E. 8 City’s Reply ISO Motion to Quash Subpoena and for Sanctions Case No. 21-CIV-01560 1 quash typically filed before the time for production, although the court may consider such 2 motion after the date of production). 3 Defendants contention that the City must submit a separate statement with this Motion is 4 also frivolous. Defendants cite no authority that a separate statement is required for a third-party 5 subpoena. Moreover, no separate statement is required for a motion to quash an entire subpoena 6 as improperly served and untimely because “no response has been provided to the request for 7 discovery.” California Rules of Court, rule 3.1345 (b). The City attached a copy of the subpoena 8 to Mr. Carneghi’s declaration supporting this Motion. No purpose would be served by providing 9 a separate statement reproducing each request for documents in the subpoena. The City objects 10 to the subpoena as a whole as in violation of Code of Civil Procedure sections 1258.210 et seq. 11 and the attorney work-product privilege, rather than any specific request for documents. See 12 Motion at 4-7. Accordingly, this motion to quash was reasonably, timely, and properly filed. 13 V. Personal service is required for subpoena of a third party; Defendants’ failure to do so justifies quashing the subpoena. 14 Parties must serve subpoenas personally, including those for business records. § 15 2020.220. Section 415.20 authorizes substitute service of the “summons and complaint” in lieu 16 of personal delivery, specifying that “[s]ervice of a summons in this manner is deemed complete 17 on the 10th day after mailing.” Nothing in the Code of Civil Procedure authorizes substitute 18 service of a subpoena. Accordingly, Mr. Carneghi cannot consent to substitute service where 19 such service is not allowed. As such, the subpoena was never properly served on Mr. Carneghi 20 and may be quashed on this ground alone. 21 VI. The Court should award sanctions for Defendants’ unjustified subpoena. 22 The City requests that the Court award the amount of the reasonable expenses incurred in 23 making this motion to quash pursuant to Code of Civil Procedure section 1987.1, including a 24 total of $9,501.60 in reasonable attorneys’ fees for time and expenses incurred on the City’s 25 efforts to cause Defendants to withdraw the subpoena and prepare the Opening and Reply briefs 26 and supporting documents. §§ 1987.2; 2023.010(a)-(c), 2023.030(a). The City has incurred 19.7 27 hours of associate time on this Reply brief billed at a rate of $249 per hour and 4.3 hours of 28 9 City’s Reply ISO Motion to Quash Subpoena and for Sanctions Case No. 21-CIV-01560 1 partner time billed at a rate of $288 per hour, for attorneys’ fees of $6,143.70. Declaration of B. 2 Gonzalez in Support of Reply on City’s Motion to Quash and for Sanctions, ¶ 2. This total does 3 not include the cost of counsel’s time to prepare for and attend a hearing on the Motion. 4 CONCLUSION 5 The Court should grant the City’s Motion to Quash Subpoena and award sanctions to the 6 City. 7 DATED: July 21, 2022 SHUTE, MIHALY & WEINBERGER LLP 8 9 By: 10 BENJAMIN GONZALEZ 11 Attorneys for Plaintiff 12 CITY OF HALF MOON BAY 13 1537530.4 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 City’s Reply ISO Motion to Quash Subpoena and for Sanctions Case No. 21-CIV-01560